Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Wednesday, August 17, 2011

SoL for HCLC: What is the limitations period for a med-mal claim?

Limitations Period for Health-Care-Liability Claims

A health-care-liability claim has a two-year limitations period. Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a) (West 2005). The statute tolls the limitations period for 75 days if the claimant notifies the physician of the claim against the physician in the manner that Chapter 74 requires. Id. § 74.051(c) (West 2005); Rubalcaba v. Kaestner, 981 S.W.2d 369, 373 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); see Rowntree v. Hunsucker, 833 S.W.2d 103, 108 (Tex. 1992).[3]

We measure the limitations period from (1) the date that the breach or tort occurred, (2) the last date of a course of treatment for a particular condition, or (3) the last date of a hospitalization for which a claim is made. Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a); Rowntree, 833 S.W.2d at 104. If we can ascertain the date the alleged beach or tort occurred, then the limitations period must be measured from that date; inquiry into the second and third potential dates is unnecessary and immaterial. Id.

SOURCE: Houston Court of Appeals - 01-10-00569-CV - 8/11/11


The [ Med-Mal Plaintiffs ] contend that they filed their claims within the limitations period because July 12 was an ascertainable date on which [Doctor-Defendant] committed malpractice by failing to order a blood sugar test or alternatively because it was the last day of a course of treatment. [Doctor-Defendant] responds that he did not conduct a patient visit with [ Patient ] on July 12; that, as a matter of law, a physician can breach a standard of care to conduct diagnostic testing only on a date that the physician actually examines the patient in person; and that the July 12 chart review and orders here do not constitute a patient visit. [Doctor-Defendant] alternatively responds that the [ Med-Mal Plaintiffs ]’ expert’s affidavit contradicts the expert’s earlier deposition testimony that May 5 was the last date that [Doctor-Defendant] committed malpractice.

Because the applicable limitations period is 2 years long and tolled for 75 days, we examine the last date that [Doctor-Defendant] was involved in [ Patient ]’s medical care—July 12, 2005—as the only potential date from which limitations had not run by the time the [ Med-Mal Plaintiffs ] notified [Doctor-Defendant] of their claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a); Rubalcaba, 981 S.W.2d at 373.

The [ Med-Mal Plaintiffs ] assert that [Doctor-Defendant] was negligent on July 12, 2005, when [Doctor-Defendant] reviewed [ Patient ]’s chart, discharged his standing order referring [ Patient ] to a neurosurgeon, failed to order a blood sugar test, and ordered that [ Patient ] be sent to the emergency room in an emergency. According to Raskin, on July 12, [ Patient ]’s medical chart showed a history of diabetes and a number of severe diabetic symptoms that [ Patient ] was then exhibiting. Raskin opined that an adequate review of a [ Patient ]’s medical chart on July 12, 2005—a chart revealing a history and classic symptoms of diabetes—would prompt a reasonably prudent physician to order the patient’s blood sugar level be tested to determine if his blood sugar was under control. Raskin concluded that after reviewing [ Patient ]’s medical chart, [Doctor-Defendant] breached the applicable standard of care by failing to order [ Patient ]’s blood sugar be tested. It is undisputed that on July 12, [Doctor-Defendant] possessed the authority to order a nurse or nurse’s aide to perform a blood sugar test on [ Patient ]. Instead, [Doctor-Defendant] cancelled his order referring [ Patient ] for further medical care and instituted a new plan that ordered that [ Patient ] be taken to an emergency room for any emergent medical needs.

[Doctor-Defendant] responds that a physician cannot breach a standard of care to conduct diagnostic testing unless the physician actually examines the patient and thus his July 12 chart review is insufficient to constitute a breach of the standard of care or the last date of a course of treatment. [Doctor-Defendant] cites the following cases for support: Shah v. Moss, 67 S.W.3d 836, 844–45 (Tex. 2001); Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998); Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex. 1995); Chambers v. Conaway, 883 S.W.2d 156, 159 (Tex. 1993); Rowntree, 833 S.W.2d at 108; Streich v. Dougherty, No. 13-05-00064-CV, 2008 WL 5191309, at *3 (Tex. App.—Corpus Christi Dec. 11, 2008, no pet.).

In Rowntree, the plaintiffs alleged that the defendant–physician failed to diagnose a patient’s occluded arteries, which led to a debilitating stroke. Rowntree, 833 S.W.2d at 103–04. The Texas Supreme Court explained that the physician “could have breached this duty only on those occasions when he had opportunity to perform . . . examinations.” Id. at 108. Thus, “the date of the alleged wrongful act . . . , [as] ascertainable from the facts of the case, was the last visit that [the patient] paid to [the physician’s] office.” Id. This was true despite evidence that the patient had called the physician’s office for medication refills after her last office visit. See id. at 104.

The [ Med-Mal Plaintiffs ]’ allegations are distinguishable from Rowntree in two respects: First, unlike the necessary examination in Rowntree, [Doctor-Defendant] could have ordered testing of [ Patient ]’s blood sugar upon a review of his chart, even without conducting an in-person patient examination. Second, unlike a prescription refill, which continues a prescribed course of treatment, on July 12, [Doctor-Defendant] reviewed [ Patient ]’s then-existing medical condition, and he instituted a new “plan” of treatment—to discontinue planned, additional medical follow up of [ Patient ]’s complaints absent an emergency.

In Chambers, the plaintiffs alleged that the defendant–physician negligently failed to diagnose a patient’s breast cancer after initial testing indicated that her lump was benign. 883 S.W.2d at 157. The Texas Supreme Court explained that a physician may be liable for a failure to diagnose a condition “up to the last appointment between them,” even if that appointment was unrelated to the negligence claim but that the limitations period could not toll indefinitely until discovery of the condition. Id. at 157–58. In contrast to the July 12 chart review here, the plaintiffs in Chambers did not allege that the physician undertook any medical diagnosis or developed any plan of treatment after the last office visit. See id. at 156.

In Bala, the plaintiffs alleged that the defendant–physician negligently failed to diagnose a patient’s cancer. See 909 S.W.2d at 890. The Texas Supreme Court held that the physician’s negligent failure to conduct follow-up procedures could have occurred in connection only with patient examinations before the examination that led to the proper diagnosis. Id. at 892. As in Chambers, and unlike the present case, there was no allegation that the physician’s negligence stemmed from anything other than a patient visit because no other evidence of medical decision-making existed in the record. See id.

In Husain, the plaintiffs alleged that the defendant–physician was negligent by not taking actions that would have lead to earlier discovery of the patient’s cancer. 964 S.W.2d at 919. The Texas Supreme Court explained that “[t]hose events, or non-events, occurred on specific ascertainable dates: January 25, 1990, and September 26, 1991.” Id. at 920. On January 25, the physician spoke with the patient to inform her of the results of a prior mammogram, and the physician referred the patient to another physician. Id. at 919. Husain suggests that a physician can breach a duty to perform follow-up tests on a specific date even without an in-person patient visit if the claim alleges an error in the medical judgment related to the physician’s medical diagnosis or plan of care executed on a given day. See also Garrett v. Harris County Hosp. Dist., No. 01-07-00836-CV, 2008 WL 3522258, at *3 (Tex. App.—Houston [1st Dist.] Aug. 14, 2008, no pet.) (mem. op.) (hospital “breached its duty to disclose [the patient’s] biopsy results by failing to communicate the results reasonably promptly after obtaining them”).

In Shah, the plaintiff–patient alleged that the defendant–physician negligently failed to provide weekly or monthly follow-up visits after performing surgery on his eye. 67 S.W.3d at 844. The Shah court held that limitations ran from the last follow-up visit actually conducted, not from the last office visit—a routine yearly eye exam—which occurred a year later. Shah, 67 S.W.3d at 845. The court explained that this conclusion was compelled by the standard of care as alleged by the patient’s expert, which required follow up at a much earlier time to prevent the injury alleged. See id.

In pinning the limitations period to the last office visit, [Doctor-Defendant] suggests that reasonable minds could not disagree about the character of his July 12 chart review and order. We disagree. Some evidence exists that, on July 12, when [Doctor-Defendant] reviewed [ Patient ]’s medical condition, he changed his “plan” of treatment for [ Patient ]—discharging his standing order referring [ Patient ] to a neurosurgeon—and ordered [ Patient ] be sent to the emergency room only in an emergency, without ordering any testing of [ Patient ]’s blood sugar despite worsening charted symptoms consistent with diabetes. We hold that that the [ Patient ]’s suit alleges acts of medical negligence on July 12, 2005, a readily ascertainable date within the limitations period; thus, the record does not support summary judgment based on the statute of limitations.

SOURCE: Houston Court of Appeals - 01-10-00569-CV - 8/11/11